2019 PLP 1550 (MLD)

ALI BAIG, J.

Through the instant revision petition the petitioners/defendants have called-in-question the legality and propriety of the impugned judgment/order dated 31-5-2018 passed by the learned District Judge Gilgit in CFA No.58/2017, whereby the learned Ist Appellate Court has varied the order/judgment dated 14-6-2016 passed by the learned Senior Civil Judge Gilgit.

2. The brief facts necessary for the disposal of this revision petition are that the present respondent/plaintiff instituted a suit for declaration and possession of suit land against the present petitioners and respondents Nos.2 to 5/defendants in the court of the learned Senior Civil Judge Gilgit claiming that the respondent No.1/plaintiff being purchaser is owner of suit land under khasra No.241 measuring one kanal situated at Konodas Gilgit described in the heading of the plaint. The defendants Nos.1 and 2/present petitioners have illegally and un-authorisedly occupied on the suit land, therefore, possession of suit land may be delivered to the plaintiff by ejecting the present petitioners/ defendants Nos.1 and 2 from the suit land.

3. The present petitioners being defendants in the suit contested the suit by filing their joint written statement in the learned trial court wherein they have raised certain legal objections and have also denied the averments of plaint. The respondents Nos.2 to 5 have also filed their separate written statement raising certain legal and factual grounds in the written statement.

4. Although the plaintiff/present respondent No.1 had not sought temporary or permanent injunction in the plaint/suit, but the plaintiff/ respondent No.1 had filed an application under Order XXXIX, Rules 1 and 2, C.P.C. along with plaint for grant of temporary injunction. The learned trial court after hearing arguments on behalf of both the parties has partially allowed the aforesaid application of the plaintiff by restraining the present petitioners/defendants Nos.1 and 2 to the extent of alienating the suit property by way of sale, or exchange or transfer to any other person etc. till disposal of suit. However, the learned trial court has allowed the present petitioners/defendants Nos.1 and 2 for construction on the disputed property with the condition that if eventually the plaintiff/respondent No.1 wins the case, the defendants Nos.1 and 2 will hand over the suit land along with all construction/development to the plaintiff/present respondent No.1 vide order/judgment dated 14.6.2016.

5. The aforesaid order/judgment passed by the learned trial court was challenged before the learned District Judge Gilgit through civil first appeal and the learned Ist Appellate Court vide the impugned judgment/order dated 31-5-2018 has varied the order/judgment passed by the learned trial court dated 14-6-2016 and the parties were directed to maintain status quo till disposal of the suit.

6. Feeling aggrieved and dissatisfied from the impugned judgment/ order passed by the learned 1st Appellate Court the present petitioners have filed this civil revision petition in this court.

7. The learned counsel appearing on behalf of the petitioners contended that the impugned order passed by the learned 1st Appellate Court is contrary to law and facts on the record of the case, as such the impugned order/judgment of the learned 1st Appellate Court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the learned trial court had rightly allowed the petitioners/defendants Nos.1 and 2 for construction on the disputed land as the disputed property is in their possession and if the plaintiff/respondent No.1 succeeds in obtaining decree in her favour, the suit land will be handed over to the plaintiff along with all constructions/buildings etc. as ordered by the learned trial court. The learned counsel for the petitioners further argued that the plaintiff/respondent No.1 has failed to make-out a prima facie arguable case in her favour, balance of convenience is not in favour of the plaintiff and if the temporary injunction is not granted the plaintiff shall not suffer irreparable loss, as such the learned Ist Appellate Court has committed illegality while granting temporary injunction in favour of the respondent No.1/plaintiff in absence of aforesaid necessary ingredients for grant of injunction.

8. It is pertinent to mention here that despite issuance of repeated ordinary notices/summons the contesting respondent No.1/plaintiff and proforma-respondent No.6 did not appear before the Assistant Registrar of this court, therefore, notice under Order V, Rule 20, C.P.C. was got published by the office of this court in the name of respondents Nos.1 and 6 in Daily K-2 G.B dated 25-2-2019, but the respondents Nos.1 and 6 again did not appear before this court, hence the respondents Nos.1 and 6 have been proceeded ex-parte by this court vide order sheet dated 27-3-2019.

9. The learned Additional Advocate General while representing the respondents Nos.2 to 5 opposed the arguments advanced by the learned counsel for the petitioners by contending that the suit land is khalisa sarkar and Govt. of GB is owner of the disputed property, therefore, the petitioner may not be allowed to construct the residential house on the suit land.

10. I have heard the learned counsel for the petitioners and the learned Additional Advocate General and perused the record with their able assistance.

11. From perusal of record it transpires that the respondent No.1/plaintiff has filed suit for declaration and possession of the suit in the trial court and the plaintiff has not sought temporary or permanent injunction in her plaint and the plaintiff has simply attached/annexed an application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction with the plaint, hence without seeking consequential relief of temporary or permanent injunction in the suit/plaint, the plaintiff cannot seeks permanent or temporary injunction through a separate application filed Order XXXIX, Rules 1 and 2, C.P.C.

12. Even otherwise, the learned trial court vide its judgment/order dated 14-6-2016 has already restrained the present petitioners/defendants Nos.1 and 2 from alienating the suit property, through sale, exchange or gift to any person till disposal of suit and has only conditionally allowed the present petitioners/defendants Nos.1 and 2 to the extent of construction on the disputed land with the condition that if the plaintiff/ respondent No.1 eventually wins the case, the petitioners/defendants Nos. 1 and 2 shall hand over the disputed land to the plaintiff with all construction/house etc., thus issuance of injunction subject to any condition, being a matter of discretion of court of first instance, and unless it is shown that attachment of condition is arbitrary and not in consonance with attendant circumstances of case, such a discretion could be interfered with by court of appeal/revision, as it may be.

13. Furthermore, from perusal of the impugned order passed by learned Ist Appellate Court it reveals that the learned Ist Appellate Court has passed the impugned judgment/order in a hasty manner as the impugned order of the learned 1st Appellate Court has been written on a half page, is not well reasoned, speaking order and as such the learned 1st Appellate Court has wrongly varied the well reasoned and speaking order/judgment passed by the learned trial court.

14. The learned Addl. Advocate General has neither filed an appeal nor cross objections in the Ist Appellate Court against the order/judgment of the learned trial court dated 14-6-2016, as such the respondents Nos.2 to 5 are estopped by their conduct and admission to challenge the judgment/order dated 14-6-2016 passed by the learned Senior Civil Judge Gilgit first time before this court.

15. For the foregoing reasons, I am of the firmed view that the learned Ist Appellate Court has committed material irregularity and illegality while passing the impugned judgment/order dated 31-5-2018, hence this revision petition is accepted and the impugned judgment/order passed by the learned Ist Appellate Court is set aside. Consequently, the judgment/order dated 14-6-2016 passed by the learned trial court is maintained. Parties are left to hear their own costs. File. SA/48/GB Revision allowed.